ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

      Crl. Bail Appln. Nos593 and 594  of   2009.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection as Flag ‘A’.

For Hearing.

03.02.2010.

Messrs Ali Nawaz Ghanghro and Habibullah Ghouri advocates for applicants in both bail applications.

                        Mr. Safdar Ali G. Bhutto advocate for complainant.

                        Mr. Ali Raza Pathan, State Counsel.

                                                -.-.-.-.-.-.-.-

                        By this order I propose to dispose of Crl. Bail Appln. Nos.593/2009 and Cr. Bail Appln. No.594/2009 because the two applications arise out the same FIR. The FIR was registered at Police Station Mahota on 12.11.2002. It was stated in the FIR, after narrating history of previous pending litigation between the parties that on the fateful day at about 7 O’clock a group of eleven persons ascended on the embankment. Three were armed with K.Ks, one with rifle, two with shot guns and four with pistols. After acrostic the complainant party two of the accused is said to have told the complainant party that they would be taught a lesson. Thereafter call to kill was given. Applicant Altaf Hussain is alleged to have made straight fire on father   of the complainant which hit him at his left arm. Applicant Hussain and other two co-accused were alleged to have made straight fire at face and head of father of the complainant. Applicant Ali Dino and Uris are alleged to have made straight fire with shot gun which hit him  on left side of the chest. One co-acced Gulshan is alleged to have made straight fire at one Sabir from rifle which hit him at his navel. Applicant Wahid Bux is alleged to have made straight fire at Raza Ali which hit him at his thigh. At this stage the complainant in order to save life of Raza Ali  ran to his house shouting murder. All the accused came to  house of Raza Ali. They were entreated by ladies as well as male family members but two co-accused fired from their pistols at one Darya Khan which hit right side of his back and left hand. Another accused fired at another person’s legs and hit him on  both his legs. After that all the accused persons went chanting slogans. Complainant’s father and brother succumbed to their injuries while the other accused persons were taken for treatment.

                        Applicants Rafique, Wahid Bux, Ali Dino and Uris were arrested on 10.12.2002. Applicant Hussain was arrested on 17.12.2003 and applicant Altah Hussain was arrested on 16.5.2007.

                        The matter was sent up for trial to Anti-terrorism Court and challan was filed. The application was filed in that Court stating that given circumstances of the case Anti-terrorism Court did not have jurisdiction. This application was dismissed by the Anti-terrorism Court. Revision was filed in this Court and the revision was allowed and it was held that case is to be proceeded before the concerned Sessions Judge. Being aggrieved Criminal Petition for leave to appeal was filed before the Honourable Supreme Court of Pakistan. Initially Supreme Court while granting leave to appeal ordered stay of proceedings on 25.11.2003.  In July 2008 Criminal Appeal was dismissed by the Supreme Court. Thus it was settled by the Supreme Court that the matter is to be proceeded before the Sessions Judge. With  dismissal  of the criminal appeal, obviously the order staying proceedings came to an end.

                        Bail Application was filed by four of the present six applicants namely Rafique, Wahid Bux, Ali Dino and Muhammad Uris. That bail application was disposed of by this Court vide order dated 04.12.2008. The operative part of order reads as under :                     

The learned counsel for the applicants has agreed to this proposal. He, however, submits that in case the prosecution did not examine the complainant and his witnesses within the period of three months then the request of the accused for bail may be considered.

The request of the learned counsel for the applicants is reasonable one, therefore, it is observed that in case the complainant and his witnesses did not turn up within three months before the trial Court then the applicants will be at liberty to move application for bail. The instant bail application is accordingly disposed of alongwith listed application and the learned trial Court is directed to frame charge against the accused on the next date of hearing without fail and further no adjournment for more than 10 days should be granted in this case, which is old one of the year 2002.

At this stage, it is informed that the Court where the case is presently lying is vacant and no Presiding Officer is posted there, hence for the early disposal of the case, this case is withdrawn from the Court of V-Additional Sessions Judge, Larkana, which is lying vacant and is transferred to the Court of learned Sessions Judge, Larkana with the directions that either he should himself proceed with the case, frame the charge and record the evidence of the witnesses within three months, or should transfer the same to any other Additional Sessions Judge, who is available to proceed with the case, with direction to frame charge on the next date of hearing i.e 15.12.2008 and to record evidence of the witnesses within afore-noted period. Learned counsel for the applicants has undertaken that he will not seek any unnecessary adjournment in the matter.”     

                        As it is evidence from  perusal of this order that this Court ordered that evidence of witnesses be recorded within three months.  Order was made in respect of adjournment etc also. Thereafter on 23.2.2009 charge was framed. After framing of charge examinations-in-chief of complainant and PW Raza Ali were recorded on 27.5.2009, examination-in-chief of PW Mehnaz and Darya Khan was recorded on 24.6.2009 and examination-in-chief of PW Darya Khan, Amir and Nazim Hussain recorded on 05.8.2009. The police while submitting challan placed Gulshan, Liaquat, Angan and Hazar Khan in column No.2 of the challan and therefore did not send them up for trial. In 2004 application under section 193, Cr.P.C was filed. This application was decided vide order dated 09.12.2009 and the above named four persons were ordered to be joined as accused.

                        Mr. Ghouri and Mr. Ghanghro learned counsel for the applicants submitted that applicants are not responsible for delay in  conduct of the trial. They submitted that delay has been caused firstly by an order passed by Supreme Court whereby proceedings before the learned Sessions Judge were stayed and secondly although examinations-in-chief of as many as seven witnesses had been recorded by 05.8.2009, was after this that application under section 193, Cr.P.C was pressed by the complainant and that application was decided vide order dated 09.12.2009. Allowing of that application meant that thereafter proceedings have to be initiated against four newly joined co-accused persons and trial had to go back to its initial stage. Therefore, the applicants are not responsible for delay in trial. He further submitted that the applicants have been behind bars for almost six to seven years with no end in sight. They therefore, prayed for bail.

                        Mr. Safdar Ali G. Bhutto, learned advocate for complainant placed on record copy of the diary sheet and contended that after application  filed under section 193, Cr.P.C was allowed vide order dated 09.12.2009, vide order dated 13.01.2010 proclamation under section 87/88, Cr.P.C against the four newly joined accused was issued and the trial was bifurcated. Therefore, the apprehension expressed by Mr. Ghanghro that trial still go to its initial point is without any substance. He referred to  diary sheet and pointed out that on 23.2.2009 when  charge was framed, the present applicants had refused to sign plea of not guilt, although they pleaded so. He further submitted that they signed their pleas on 16.9.2009. He referred to diary sheet for 26.01.2010 and pointed out that applicant Altaf Hussain refused to come to the Court from jail. He submitted that it is case of double murder, premeditated and heinous and therefore accused are not entitled to  concession of bail. Mr. Bhutto relied upon 2005 MLD 1247.

                        Learned State Counsel narrated that delay in the trial is not on account of no fault of the prosecution. He further submitted that simplicitor  delay in  trial is no ground for grant of bail; particularly so after deletion of proviso in this regard from section 497(1), Cr.P.C by ordinance XLIV of 2001.

                        Exercising his right of reply, Mr. Ghanghro submitted that the applicant Altaf Hussain has not been brought by jail authorities from jail and if he refused to come there were sufficient mechanisms available both to the jail authorities as well as to the Court either to compel his attendance or to order that the trial may proceed in absence of such an accused persons; and particularly so when the accused person is represented by a counsel.

                        I have considered submissions made by the learned counsel and have gone through the record. In the FIR following is the role ascribed to each of the accused persons:

Altaf Hussain: Armed with K.K, fired at father of the complainant with intention to kill and the firing hit left arm of the deceased.   

Hussain           :  Armed with K.K fired at father of the complainant’s face and head.

Ali Dino & Uris: Fired with shot gun at brother Tanveer of the complainant with intention to kill which fire hit him at left side of chest. Tanveer expired.

Wahid Bux      :     Fired with pistol at Rafique Ahmed which hit him at his thigh.

                         Details of arrest are Rafique, Wahid Bux, Ali Dino and Uris on 10.12.2002. Hussain on 17.12.2003, Altaf Hussain on 16.5.2007.

                        Who is responsible for the delay in the trial?  First set of delay was caused because the matter was originally sent up to Anti-terrorism Court for trial. Whether A.T.C had jurisdiction or jurisdiction vested in  the Sessions Court was a question which went from ATC to High Court and then to Supreme Court and was ultimately decided when it was Criminal Appeal dismissed for non prosecution. During this period before the Supreme Court it was the Supreme Court which had stayed proceedings. Therefore, it would not be fair to hold the accused persons responsible for this delay and neither it would be reasonable to dump this delay at the door of prosecution.

                        After the order was passed by the Supreme Court in July 2008, the matter started proceedings before the Sessions Judge. On 04.12.2008, this High court granted three months time to the trial Court to conclude the trial. The trial Court in a period of eight months recorded examinations-in-chief of as many as seven witnesses. Then came up question of application under section 193, Cr.P.C. That application was allowed on 09.12.2009. But fortunately within a period of month and four days the trial was bifurcated. That was on 13.1.2010. Now the position of the trial, therefore, is that as far as these five applicants are concerned examination-in-chief of seven witnesses have been recorded. There are still eight witnesses yet to be  recorded but most of them are either mashirs or police officials and the Medico legal officer.

                        The applicants have been behind bars for a long time: four of them for eight years, one for more than six years and one for almost three years. They are not yet guilty because they are presumed to be innocent till proved guilty. However, it is now settled law that mere delay in the case is not and cannot be a ground for grant of bail. Delay can only be ground for grant of bail when he delay amounts to abuse of process of law. In Wajid Ali versus the State, 2005 MLD 1247, the facts were that the incident was alleged to have occurred on 27.5.2001. Question of jurisdiction was involved and the Supreme Court stayed the proceedings. It was argued that delay in disposal of the case was not caused  by prosecution. It was held by the High Court that although the proceedings has been stayed by the Supreme Court but High Court would be competent to hear and decide  bail application. Thereafter, High Court laid down the principle that consensus of authorities relied upon in the case is that if the delay in disposal of the case has caused  a abuse of process of law then it can be taken as a ground for grant of bail. Having laid down  this principle, the Court observed that it was considered view that delay in disposal of case had occurred because of legal battle between the parties on the question of the age of the accused and jurisdiction of the Trial Court which was not an abuse of process of law as the parties were required to adopt  legal course by approaching the legal forums and finally it was held that such delay cannot be taken as ground for grant of bail in those circumstances. In the present case it is unfortunate that such long delay has occurred but it has been primarily for five years because as to whether the case was to be tried by ATC or by the Sessions Judge. Such delay can neither  the face of the  prosecution nor be put at the part of the defence. Unfortunately, though it may be,  it cannot be ground for grant of bail.

                        Clear role has been stated of all the five applicants in the FIR. They are directly implicated and named in the FIR. This Court on 04.12.200 gave direction to the trial Court to decide the case within three months and not to grant any adjournment for more than ten days. Now that the application under section 193, Cr.P.C has been allowed and thereafter on 13.01.2010 trial of four added accused persons has been bifurcated and since examinations-in-chief  of as many as seven prosecution witnesses have been recorded,  the trial Court is directed to proceed with the trial expeditiously, not to grant any adjournment for a period of more than one week and decide the matter within a period of three months. The bail applications are disposed of in the above terms.

                        However, after material witnesses in the trial have been cross examined (and that should be done within one month) the applicants shall be at liberty to move fresh bail applications before the trial Court. Needless to observe that the trial Court while deciding guilt or innocence of the accused persons shall not be, in any manner whatsoever, influenced by any of the observations made hereinabove.

Judge